This conflict feels like a bad hangover, but there’s no way to sleep it off. It’s high time for a high court resolution.
Women’s groups on the left and the right are at the leading edge of petitioning the United States Supreme Court to open its doors to another landmark case in the culture war. After opposite rulings in lower courts, a case from Indiana is ripe for consideration by SCOTUS to resolve the raging debate over whether school bathroom use can be limited based on sex, not self-declared “gender identity.”
In July 2019, the Supreme Court declined to hear an appeal of Doe et. al. v. Boyertown Area School District, a case asserting the right of students to sex-specific school restrooms and locker rooms.
High school students in Boyertown, Pennsylvania had sued their school district for mandating boys and girl’s bathroom use according to a student’s self-declared “gender identity” not their sex. This policy was put in place after Obama political appointees at the U.S. Department of Education issued a “Dear Colleague” letter redefining the meaning of “sex” as “gender identity” with the stroke of a pen. No authority was granted from Congress to make such a radical change to Title IX. Neither was the legal requirement of public notice and comment for a rule change obeyed, making Obama’s extremely consequential reinterpretation of “sex” doubly illegitimate.
But under threat of losing federal funds, school districts across the country quickly fell in line, adopting policies that turned the plain meaning of binary sex — and the intent of Title IX to advance protections for women and girls — on its head. That’s why students in Boyertown sued their school district.
Boyertown student Alexis Lightcap made their cause clear: “Why is it so hard for school officials to understand that young girls care about the privacy of their bodies? It’s natural for us and our parents to worry about who might walk in on us in a vulnerable moment. The school bureaucracy has no right to say my privacy is irrelevant.”
The students were overruled in a flimsy decision by the Third Circuit Court of Appeals, so they took their case to the Supreme Court — only to find their petition for a hearing denied in a routine order in 2019.
Four years later the issue was not going away. The Supreme Court’s dodge put the ball in then-President Trump’s court. Trump had rescinded Obama’s infamous “Dear Colleague” letter but was failing to take effective action to undo Obama’s damage to Title IX and stop the erroneous interpretation of sex that allowed males to use girls’ bathrooms after declaring a new “gender identity.”
In 2021, President Biden rushed in to make matters worse by re-imposing Obama’s Title IX “gender identity” mandate. The Supreme Court repeated its dodge to resolve the matter by declining an appeal of a Virginia school board in the case of Grimm v. Gloucester County School Board from the Fourth Circuit.
The train wreck has been swift. We’ve seen female students forced to undress with males in their locker rooms, and male football players demanding their own rights to privacy. Cases of parents being hoodwinked by gender ideologues running their schools and students being silenced and exploited by gender ideology are widespread.
Federal appeals courts have now split in their conclusions about Title IX and students’ constitutional rights to sex-separated school bathrooms and locker rooms. In Adams v. School Board of St. Johns County, Florida, the Eleventh Circuit broke with the other circuit courts, siding with the school board to uphold its sex-based bathroom policy. The issue is now fully ripe for a Supreme Court resolution.
Concerned Women for America — in alliance with women’s groups on the left and the right, including Independent Women’s Forum, Women’s Liberation Front, and Women’s Declaration International USA — is urging SCOTUS to grant the petition in Metropolitan School District of Martinsville v. A.C. to end the confusion and misapplication of Title IX.
Our brief is the first of its kind at the Supreme Court level in a pathbreaking partnership between conservative women on the right and feminists on the left. It highlights the significance of our shared cause and reflects the crucial and compelling witness of our collaboration.
“Amici’s goals and beliefs span the political spectrum, and they disagree on many issues. But they agree on this: neither Title IX nor the Equal Protection Clause of the U.S. Constitution requires that schools dismantle single-sex bathroom facilities,” the brief reads.
The student (called A.C. in court documents) challenging Martinsville’s policy is a middle-schooler who was born female but identifies as a boy. When Martinsville rejected A.C.’s request to use the boys’ restrooms, the student sued, arguing that the district’s policy violates Title IX and the Equal Protection Clause of the Constitution, even though a single-user bathroom is available to the student. The Seventh Circuit Court sided with A.C.
The Martinsville case reflects the urgency of the conflict facing schools across the country as school boards act to restore common sense with sex-based policies that recognize biology over ideology. Our schools and students cannot continue to be tossed to and fro by the whims of politics.
The current split in the courts over Title IX and constitutional rights is a chasm that will not resolve itself. It’s prime time for the high court to weigh in.
Doreen Denny is Senior Advisor for Concerned Women for America
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.